Joan Frawley Desmond: Investigating a Brother Bishop

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After the Vatican blocked U.S. Church leaders from voting on two proposals to strengthen bishop accountability, a third plan giving metropolitan archbishops responsibility for investigating accused bishops draws intense scrutiny.

By Joan Frawley Desmond, EWTN News, 11/28/18 at 4:09 PM

WASHINGTON — A new draft measure designed to strengthen bishop accountability is now on the table, after the Vatican blocked the U.S. bishops from voting on two related proposals at their annual fall assembly in November.

At the close of the tumultuous Baltimore meeting, Cardinal Daniel DiNardo of Galveston-Houston, the president of the U.S. Conference of Catholic Bishops, confirmed that a new, modified plan would also be under review, along with the original proposals that had been tabled until the conclusion of the Vatican’s global meeting to address the abuse crisis slated for February.

A USCCB task force will now evaluate two different paths for investigating claims. In the initial proposal, a “single national lay commission” would take up the investigation; and in the new plan, a metropolitan archbishop oversees the inquiry, while relying on “established diocesan review boards, with their lay expertise.”

The new draft measure was first presented at the USCCB fall assembly by Cardinal Blase Cupich of Chicago and is clearly designed to build on the long-established structure of Latin-rite ecclesiastical provinces, rather than creating a national lay-led commission for investigating accused bishops, with all the additional costs potentially involved in such a process.

Cardinal Cupich did not say that the new proposal had originated in Rome when he discussed it at the USCCB meeting, and he denied a report published by Catholic News Agency that stated he had collaborated with Cardinal Donald Wuerl in formulating it.

But he is one of two U.S. cardinals who serve on the Congregation for Bishops, which issued the order to postpone the votes in a letter signed by its prefect, Cardinal Marc Ouellet. And the Chicago archbishop has since been appointed to the organizing committee for the Vatican’s February summit.

It is reasonable to conclude that the new accountability proposal, “and [Cardinal] Cupich’s nomination to the organizing group, are both part of Pope Francis’ efforts to guide the whole process,” Robert Royal, the editor of “The Catholic Thing” website, told the Register.

Royal also said that sources based within the papal residence, Casa Santa Marta, “tell me that Cardinal Cupich has immediate access to the Holy Father.”

Whatever the origins of Cardinal Cupich’s proposal, it quickly generated considerable discussion at the Baltimore meeting.

Floor Comments

In comments from the floor, Archbishop Joseph Naumann of Kansas City, Kansas, called for metropolitans to be given greater authority over the bishops in their province along with the power to conduct their own inquiries.

“We have an existing structure, but it needs to be empowered,” said Archbishop Naumann.

A metropolitan archbishop is designated by the pope and heads an ecclesiastical province, which is composed of several neighboring dioceses. The other dioceses in the province are headed by suffragan bishops, and the longest serving of this group is the senior suffragan bishop.

Canon 436 of the Code of Canon Law already authorizes the metropolitan archbishop to make sure “faith and ecclesiastical discipline are carefully observed and to notify the Roman pontiff if there are any abuses.”

According to the outlines of the proposal, a metropolitan archbishop would oversee an investigation of an accused suffragan bishop, while the investigative work would be conducted by two already established lay review boards — one based in the metropolitan’s own archdiocese and the other in the diocese of the accused.

If the metropolitan archbishop himself faced accusations, then the senior suffragan bishop would oversee an inquiry.

Cardinal Cupich told the assembly of bishops that his plan removed “the opt-in provision [of the original USCCB proposal] by making the cooperation of the accused bishop obligatory.”

He also contended that the ongoing participation of lay review boards “would serve as a simultaneous check on the metropolitan responsible for investigating the bishop in question.”

Archbishop Cordileone

During an interview with the Register following the close of the USCCB meeting, Archbishop Salvatore Cordileone of San Francisco underscored the merits of the new proposal, particularly for a global Church.

“The metropolitan archbishop already has significant oversight responsibilities,” said Archbishop Cordileone. “So if we are looking for something that could be replicated in other countries,” this alternative plan might be feasible.

“The metropolitan wouldn’t have the authority to remove or discipline a bishop, but he could be given the authority to do the investigation,” said the San Francisco archbishop, who is a seasoned canon lawyer.

Both the original and more recent proposals for investigating bishops will be reviewed by a high-level committee composed of past USCCB presidents, and at the Vatican meeting in February, the initiatives could be framed as a global, regional or national option.

“Canonically speaking, the proposal to use metropolitan archbishops does have merit as a way of restoring ecclesiastical discipline through the present structures of authority,” Father Gerald Murray, a New York priest and canon lawyer, told the Register.

He suggested that Pope Francis could issue a document clarifying the scope of the canon that gives metropolitan archbishops oversight responsibilities, “so that if a bishop were accused of a number of offenses, it would fall on the metropolitan before informing the Pope to verify that a break in discipline has actually occurred.”

Last year, after the Archdiocese of New York first received an accusation of sexual abuse involving a minor that dated back to now-Archbishop Theodore McCarrick’s years as a priest in the city, Pope Francis authorized Cardinal Timothy Dolan to conduct the initial investigation.

But when Chile’s bishops were accused of shielding a notorious clerical predator, Pope Francis dispatched Archbishop Charles Scicluna of Malta, the former prosecutor of clergy sex-abuse cases for the Congregation for the Doctrine of the Faith, to conduct an apostolic investigation that resulted in the subsequent resignations of all of the nation’s bishops. To date, most of those bishops remain in place, but the Holy Father has accepted the resignations of seven Chilean bishops, and Cardinal Francisco Javier Errázuriz Ossa, the archbishop emeritus of Santiago who was also implicated in the matter, resigned this month from the Pope’s advisory “council of cardinals.”

And after Archbishop Anthony Apuron of Guam faced multiple accusation of sexual abuse of minors, the Pope sent Cardinal Raymond Burke, the former prefect of the Apostolic Signatura, the Catholic Church’s highest court, to investigate the claims. A canonical trial found the archbishop to be guilty in a minority of the allegations. Archbishop Apuron has denied the charges, and an appeal is pending.

Potential Weaknesses

The scope and complexity of these cases also point to the potential weaknesses of the new bishop-accountability proposal.

For example, had Archbishop McCarrick faced accusations that arose from his tenure as archbishop of Washington, D.C., the new plan, at least theoretically, would empower the archdiocese’s sole suffragan bishop, who leads the Diocese of St. Thomas in the Virgin Islands, to take up the investigation.

Father Murray questioned whether the bishop of St. Thomas would have the resources to effectively discharge this responsibility. And he suggested that an independent commission possessed the advantage of offering a stable, centralized response to allegations against bishops, with investigations overseen and conducted by “people of experience.”

“What if the metropolitan archbishop or senior suffragan is transferred or retires?” he asked, raising additional concerns that will likely be addressed in the months before the Vatican meeting.

Meanwhile, Chad Pecknold, a theologian at The Catholic University of America, acknowledged that the Vatican would likely raise even more questions about an independent lay-led commission investigating bishops. In the past, he said, Rome strongly resisted what has been called “lay trusteeism” — oversight responsibility exercised by lay Catholics that does not fit with the Church’s ecclesiastical framework.

“The bishops are the shepherds, and the laity are the flock,” he agreed.

But the suggestion that “the laity should have no responsible role in holding bishops accountable,” he said, is also a “kind of clericalism.”

Then, stepping back from the canonical and theological debate over the proposal’s feasibility, Pecknold also considered how the metropolitan plan would likely play to ordinary Catholics who are already angered by Church leaders’ past failures.

“If the aim is to increase accountability between brother bishops, it is a good plan,” he said. “If the aim is to assuage the fears of lay faithful who have lost trust in their bishops, it is not a good plan.”

Misconduct With Adults

Of equal importance, he said, it was not yet clear how bishops facing accusations of sexual misconduct with seminarians or priests would be investigated under this plan. Such misbehavior, while immoral, is not a canonical crime, as it was before the code was revised in 1983.

Cardinal Cupich, in past public statements, has downplayed homosexuality as a driver of clergy abuse. And during his public remarks at the U.S. bishops’ fall assembly, he distinguished between “sexual abuse of minors” and “clerical misconduct with adults,” which, he noted, could be “consensual” or even “anonymous.”

However, the laity see a correlation between the sexual abuse of minors and the shielding of homosexual behavior in the priesthood, said Pecknold.

“There is a fear that the bishops are covering up consensual homosexual relations,” he added, “and the metropolitan plan doesn’t give the laity any confidence that that problem is being faced.”

But Dominican Father Joseph Fox, vicar for canonical services for the Archdiocese of Los Angeles, told the Register that an independent lay commission would face the same questions because “there is a clear difference in how the Church views the sexual abuse of minors versus sexual misbehavior involving adults..

“There is a different standard being invoked — zero tolerance — when a charge involves a minor rather than an adult.”

“There is no ambiguity about the immorality of sexual misconduct with adults. The perceived ambiguity involves the broad range of possible misconduct, the judgment of what happened in a specific case, and the resulting process of determining the appropriate punishment.”

Father Fox also predicted that the Vatican would never allow a third-party investigative board to make a judgment about a bishop. He emphasized that canon law already gives a metropolitan archbishop significant oversight responsibility within his province and argued that this authority should be taken much more seriously going forward.

“There have been instances from the past in which the law and discipline of the Church has not been followed by bishops in dealing with the misbehavior of clergy and at times of bishops themselves,” he acknowledged.

Still, he insisted that those failures did not validate an appeal to “independent lay oversight.”

“The teaching and choices of Jesus himself about the structure of the Church do not permit adopting these measures that some think inescapable,” he said.

The Holy See’s mixed and sometimes confusing signals on the abuse crisis and synodality make it hard to predict the likely outcome of this debate.

But the acknowledged merits of the newest proposal, combined with the growing prominence of its author, Cardinal Cupich, will likely fuel expectations that the plan will receive a strong, possibly decisive reception at the upcoming summit in Rome.

Joan Frawley Desmond is a Register senior editor.